• EEOC Proposes Genetic Bias Regs
  • March 30, 2009 | Author: Vanessa S. Hodgerson
  • Law Firm: Fowler White Boggs P.A. - Jacksonville Office
  • We previously informed you that the Genetic Information Nondiscrimination Act of 2008 (“GINA” or “Act”) will go into effect November 21, 2009. The Equal Employment Opportunity Commission (“EEOC”) was required to issue regulations implementing Title II of GINA, the portion of the Act pertaining to certain employers. As a reminder, GINA makes it unlawful for employers to discriminate against an employee or applicant based on genetic information. The definition of “genetic information” includes an “individual’s genetic tests, the genetic tests of family members of such individuals, and the manifestation of a disease or disorder in family members of such individual[s].”

    This month, the EEOC has issued proposed regulations and is currently accepting comments about its proposal. The following are some examples from the EEOC’s proposed regulations that give valuable insight into how GINA will affect certain employers:

    • Making an employment decision based on knowledge of receipt of genetic services violates GINA, even if the employer is unaware of the specific nature of the genetic services
    • An employer could not reassign someone whom it learned had a family medical history of heart disease from a job it believed would be too stressful and might eventually lead to heart-related problems for the employee
    • An employer that directs an employment agency to ask applicants for genetic information or tells an employment agency not to send candidates with a family medical history for certain conditions violates GINA
    • Employers may receive genetic information when an employee seeks leave under the Family and Medical Leave Act; however, the employer must comply with strict record keeping requirements

    One difficulty employers may face when complying with GINA is the interaction between GINA and the Americans with Disabilities Act (“ADA”). The EEOC has provided the following examples in its proposed regulations that highlight how these two laws will interact with each other:

    • Even though the ADA allows an employer to require a medical examination of all employees to whom it has offered a particular job, for example, to determine whether they have heart disease that would affect their ability to perform a physically demanding job, GINA prohibits inquiries about family medical history of heart disease as part of such an examination
    • Even though the ADA permits employers to obtain medical information from post-offer job applicants, an employer will violate GINA if it obtains any genetic information, including family medical history, from post-offer applicants even if an employer obtains such information for the purpose of determining continuous fitness for duty
    • When seeking information from an individual who requests a reasonable accommodation under the ADA, the acquisition of genetic information as part of the documentation that the individual provides in support of leave is considered inadvertent (and therefore, not a violation of GINA), as long as the request for documentation was lawful
    • GINA’s prohibition on requesting, requiring, or purchasing genetic information would control during the “interactive process” used to determine an appropriate reasonable accommodation

    The deadline to submit comments to the EEOC regarding its proposed regulations is May 1, 2009.